Michael Behenna's Conviction Upheld

by DIANA WEST July 10, 2012

By a 3-2 majority, the highest military appeals court has upheld Army Ranger 1st  Lt. Michael Behenna's conviction for the unpremediated murder of a detainee and al-Qaeda-operative in Iraq named Ali Mansur. While Michael still could receive clemency, his legal appeals are now officially exhausted. Barring clemency, Michael will remain at Leavenworth military prison until 2024.

What a blow. What a disgrace.

I just finished reading the majority opinion. It is a chilling document. It contains analysis of whether Michael had "the right to act in self-defense" when the detainee he was questioning about IED attacks that had recently killed two men in his platoon, suddenly lunged for Michael's gun, and Michael shot and killed him.

This was one of several issues before the court. As the "initial aggressor" for engaging in an unauthorized interrogation of a naked detainee, Michael, the court upheld, had lost his right to self-defense. Under consideration was whether at any point in the split seconds during which the detainee hurled a piece of concrete at Michael and rushed for his gun, and Michael fired in return at the detainee, Michael ever regained it. Three judges in the calm of their chambers in Washington, D.C., determined that he did not.

Or, as they wrote: "Even assuming for a moment that Mansur could have escalated the level of force, we conclude that a naked and unarmed individual in the desert does not escalate the level of force when he throws a piece of concrete at the initial aggressor in full battle attire, armed with a loaded pistol, and lunges for his pistol."

Oh yeah? Maybe it's simplistic of me, but I'd like to see them step into Michael's combat boots and see how it felt out there in the night, after a hard day's "catch-and-release," after military intelligence shockingly set Mansur free and ordered Michael to drive him home -- the very man Michael suspected of knowing all about the attacks that had recently killed two of his men. Michael thought he could get the necessary evidence in one more interrogation, just him and Mansur. But it didn't work out as Michael hoped.

The majority:

Ultimately, even if we assume that Mansur lunged for Appellant's pistol and Appellant feared that Mansur would use the pistol if he was able to seize it, because Appellant was the initial aggressor, and because there was no evidence to support a finding of escalation or withdrawal, a rational member [juror] could have come to no other conclusion than that Appellant lost the right to act in self-defense and did not regain it.

I'm afraid that this court's idea of a "rational member" also could have come to no other conclusion than that Michael, "initial aggressor," bereft of the "right" to self-defense, should have permitted Mansur to snatch his gun from him and then shoot him dead.

Maybe then the three judges would have sighed with a satisfied kind of regret over the poor lieutenant who had given his all for their, frankly, demonic reading of the law. Instead, for having defended himself, for not having sacrificed himself to a charging terrorist, Michael and his family pay the price of Michael's freedom.

America: Is that justice?

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